Reflections on White Collar Crime and Federal Criminal Law

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Prosecutors and the Spiderman Principle

“The United States wins its point whenever justice is done its citizens in the courts.” — Inscription on the wall at U.S. Department of Justice, Washington, D.C.

There’s a well-known scene in the 2002 Spiderman movie where Uncle Ben is talking to Peter Parker. Peter has just begun to discover his super powers and was recently involved in a fight at school where, much to his own surprise, he beat up the school bully. Uncle Ben, concerned about the changes he is seeing in Peter, cautions him that his ability to do something doesn’t automatically give him the right to do it. “Remember,” he says, “with great power, comes great responsibility.”

This line is actually a paraphrase of one written by Stan Lee in the very first Spiderman comic book in 1962. It also found its way last term into a Supreme Court opinion by Justice Kagan in Kimble v. Marvel Entertainment, LLC., making her no doubt the first Supreme Court Justice to cite both Dr. Seuss and Marvel Comics in the same year.

But my fondness for this saying has nothing to do with comic books. My white collar crime students get used to hearing me talk about the “Spiderman principle” – with great power comes great responsibility – whenever I talk about the special role that prosecutors play in the criminal justice system.

The Special Responsibilities of Criminal Prosecutors

The prosecutor’s role is different from that of any other advocate. Normally an advocate’s job is to get the best result possible for your client – to win, if possible – while acting within the bounds of law and ethics. In most situations an advocate has a duty to his client, not a duty to pursue truth, justice, or some other ideal.

For example, a criminal defense attorney’s duty is to represent her client zealously, even if she knows he is guilty. She has no obligation to seek the truth; in fact, in many cases she will be doing her job if she can obscure the truth and keep it from coming to light. A civil attorney representing a company whose products injured people will get the case thrown out if there’s a legal basis to do so, even if the company is clearly responsible and fairness suggests the victims should be compensated.

But a prosecutor’s role is different. His job is not to “win” – at least not if winning is defined as convicting someone, anyone, for a particular crime. The prosecutor’s job is to ensure that justice is done. That means doing your best to make sure that the rules are being followed, that exculpatory evidence is disclosed, that the defendant’s rights are protected, and above all that you are prosecuting the right people. It means dropping charges or not bringing charges at all if it’s the right thing to do, even if you could probably get a conviction if you went to trial.

These special obligations of prosecutors may not always be clear or intuitive to the general public. Popular culture tends to portray lawyers as gladiators battling in the courtroom coliseum – and gladiators generally fight to win. Prosecutors are frequently portrayed in movies or novels as power-hungry or politically motivated, bent on winning at any cost. And it seems that every week brings some new story about a prosecutor who withheld exculpatory evidence or engaged in some other kind of misconduct that resulted in the conviction of an innocent person.

But the duty of the prosecutor to seek justice is not an anachronism or a quaint platitude. To good prosecutors, it is at the heart of their professional identity, part of their DNA. For the justice system to function effectively, it’s vital that it remain so.

The Prosecutor’s Role

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Many other cases have recognized this obligation of prosecutors to do justice and not merely to convict. Prosecutors are expected to be zealous advocates, but are expected to temper their zeal with recognition of their broader responsibilities.

This unique role of the prosecutor is recognized in various ethical and professional standards as well. For example, the American Bar Association Model Rules of Professional Conduct, which have been adopted by nearly every state, include Rule 3.8 entitled “Special Responsibilities of a Prosecutor.” It provides, among other things, that a prosecutor must not knowingly bring charges not supported by probable cause, must work to ensure that the rights of the defendant are protected, and must make timely disclosure to the defense of all exculpatory evidence.

In this cynical and partisan age it’s easy to dismiss the special obligation of prosecutors as a naïve and unrealistic ideal. Some suggest it is contrary to human nature: competitive lawyers will always try to win, and asking them to do anything less is doomed to fail. Critics argue that prosecutors are just politicians, who will do what is popular rather than what is right.

I don’t agree. To most prosecutors – and to all good prosecutors – this duty to seek justice really does mean something. I saw it put into practice every day during my twelve years as an Assistant United States Attorney. Prosecutors may not always agree with each other, and certainly may not always agree with defense attorneys, over how best to fulfill their obligations in a given situation. They may make mistakes while carrying out their duties. But they always know that they, unlike other advocates, do have a higher duty.

It’s not that good prosecutors don’t try to win — it’s that they must have a different concept of what “winning” means. As the inscription on the wall at DOJ provides, the prosecutor and the government win when justice is done in the courtroom. In any given case that may mean no one is ever prosecuted or that a guilty defendant walks free, if that’s what the law requires. Winning doesn’t mean locking someone up by any means necessary.

The Planes that Don’t Crash

One reason some may doubt that prosecutors still honor their obligation to do justice has to do with widely publicized cases of prosecutorial misconduct. It’s not uncommon to see reports of a case where a defendant was wrongfully convicted after prosecutors withheld exculpatory evidence, encouraged witnesses to lie, or engaged in some other misbehavior. Such reports have led some to claim there is an epidemic of prosecutorial misconduct in this country.

I would never seek to minimize the seriousness of misconduct when it does occur. True prosecutorial misconduct can cause tremendous harm, including in the most extreme cases sending an innocent person to prison or even to death row. Actual misconduct should be dealt with swiftly and severely and cannot be condoned. But recognizing all that, the truth is that evidence of an “epidemic” of misconduct is remarkably thin.

Press accounts may focus on one particular case or a handful of cases, and the misconduct may indeed be appalling. But any single case also has to be placed in context: each year in the United States there are several million felony prosecutions at the state and federal level. Examining a handful of individual cases actually says nothing about what is the norm across all criminal prosecutions.

There is an old saying about journalism: “no one writes about all the planes that don’t crash.” Cases of egregious misconduct make headlines, and rightly so. But no one reports on the thousands of cases every day where prosecutors are fulfilling their obligations and following the rules. No one writes lengthy research studies about how prosecutors are doing their jobs properly. Judges don’t write opinions about how the prosecutors in their case adhered to all the appropriate professional standards. Like the thousands of safe airline flights every day, these cases go unnoticed because the system is functioning as it should.

Law is a human enterprise and therefore is necessarily flawed. There are tens of thousands of prosecutors working around the country at the federal, state and local level. In any field of endeavor that large you are going to have bad actors. There are bad prosecutors, just as there are bad bankers, bad doctors, bad hedge fund managers, and bad corporate CEOs.

I’m not naïve; I don’t deny that prosecutorial misconduct happens. But I do reject the claim that the behavior of the “bad apples” is in fact the norm.

It’s Not Just the Law, It’s a Good Idea

Good prosecutors seek to do justice and play by the rules because it is their moral, ethical, and professional obligation to do so — but they soon learn it is also in their own professional self-interest. Even in large cities, the criminal law bar is a relatively small community. Within that community the most valuable asset a prosecutor has is his or her reputation.

If a prosecutor develops a reputation for being unethical, defense attorneys will learn not to trust her. That will make them less likely to encourage clients to trust the prosecutor during plea negotiations, or to advise a client to cooperate in an investigation. This will make it much more difficult for the prosecutor to resolve cases quickly or pursue complex investigations. A prosecutor doesn’t need the defense bar to love her, but she does need them to respect and trust her if she’s going to be effective.

Judges, too, may take action against unscrupulous prosecutors. Unlike most lawyers, prosecutors appear repeatedly before the same small group of judges, who rule on countless matters in the prosecutors’ cases. Judges will stop trusting a prosecutor who develops a reputation for playing fast and loose with his professional obligations. Anything that prosecutor asks the judge to do will begin with a presumption of skepticism and mistrust, making the prosecutor’s job much more difficult. A disgruntled judge can make a prosecutor’s life very miserable indeed.

If a prosecutor’s office develops a reputation for misconduct, that also will have an effect on its jury pools. Juries are drawn from members of the local community. If, based on press reports and incidents from other cases, the community does not like or trust the prosecutor’s office, members of a jury are less likely to trust the prosecution in any particular case and may register that distrust with their verdict.

In short, good prosecutors soon learn that abiding by their professional and moral obligations is not merely the right thing to do – it is also the way to be most effective as a prosecutor. Ignoring these obligations may allow an unscrupulous prosecutor to secure a conviction in a particular case, but in the long run it will catch up with him.

“Do the Right Thing”

When writing a note or commendation to a Department of Justice attorney, former Attorney General Janet Reno would often close with the tag line, “Do the right thing.” It’s simple – and may sound corny to some – but that admonition nicely summarizes the goal of every good prosecutor.

A friend who is a former prosecutor turned defense attorney tells me that when he meets with prosecutors about a case he proceeds on the assumption that the prosecutors are acting in good faith. This is much more effective, he says, than taking the position of some defense lawyers that the prosecutors are all jack-booted thugs. But in addition to being more effective it has the virtue, he believes, of being true. Most prosecutors, most of the time, are acting in good faith and trying to do their jobs appropriately.

Prosecutors wield a tremendous amount of power, and with such power always comes the potential for abuse. The ability to launch even a grand jury investigation, much less to indict, is the ability potentially to ruin someone’s life. A lawyer given that kind of power needs to recognize the responsibility that goes along with it, and must exercise that power with some humility, compassion, wisdom, restraint and judgment. And if you can’t do that, you should find another line of work. (I hear estate planning is fascinating.)

But for those willing to assume the responsibilities that go along with the job, criminal prosecution is an incredibly rewarding career — and an honorable one. Prosecutors and defense attorneys doing their jobs appropriately are the critical foundation of our criminal justice system. Although prosecutor bashing is very fashionable these days, good prosecutors working hard and trying to do the right thing will always be the true face of the profession.

People hired to be prosecutors must understand their unique obligations and have those responsibilities drilled into them from day one. The leadership in prosecutor’s offices must always ensure they are creating a culture where these obligations are recognized and embraced. A good prosecutor never forgets that he or she is not just another advocate – and never forgets the Spiderman principle.